Non Raceday Inquiry – Written Reserved Penalty Decision dated 4 June 2024 – Yani Castro

Introduction

[1]  Licensed Greyhound Owner/Handler Yani Castro (“the Respondent”) admitted a charge of Misconduct filed pursuant to Rule 156(g).  Her Licences are issued by New Zealand Greyhound Racing (GRNZ).

[2]  These proceedings were commenced by the filing of an Information (the charging document) and the full particulars with regards to the charge are set out at paragraph [4] of this Decision.

Decision and Penalty

[3]  After evaluating the evidence and the penalty submissions, the Adjudicative Committee fined the Respondent $1,200 and suspended her Owner/Handler Licences for 2 months – which is wholly suspended for 4 months pursuant to Rule 174(3).

The Charge

[4]  The particulars of the charge contained within Information No. A18901 are that, at the Waikato GRC Meeting on 18 April 2024, Yani Castro:

Wilfully abused Senior Stipendiary Steward P Kinsey by directing foul and obscene language towards her during Kennelling. 

The Hearing

[5]  The charge was heard at the Manukau Greyhound Stadium prior to racing on Sunday 2 June 2024.

[6]  At the commencement of the hearing, the Respondent confirmed that she admitted the breach.

The Rules

[7]  Part 9 of the GRNZ Rules set out, in Division 1, General Offences relating to Misconduct.  Rule 156(g) creates the offence of:

wilfully…abuses…insults:

(v)  the Racing Integrity Board or any other Official. 

[8]  In this case, Senior Stipendiary Steward P Kinsey is an Official employed by the RIB and is clearly protected from any misconduct directed at her by a License Holder pursuant to this clause of the Rules.

Penalty Provisions

[9]  The penalties which may be imposed are contained in Rule 174(1), these include:

An Adjudicative Committee may as it thinks fit penalise a person found guilty of an offence under the Rules by any one or a combination of the following penalties:

(a)  a reprimand (sometimes known as a warning or caution);

(b)  a fine not exceeding $10,000.00 for any one offence;

(c)  suspension;

(d)  disqualification;

(e)  cancellation of a registration or a licence, or in the case of a Club, its affiliation to GRNZ; or

(f) warning off.

(3)  Any portion of a penalty imposed may be suspended for a time and pursuant to conditions that an Adjudicative Committee thinks fit.

Summary of Facts

Background Information

[10]  The Respondent, is the holder of an Owner/Handler Licence issued by New Zealand Greyhound Racing (GRNZ). She owns and handles Greyhounds and is based in Pukekohe.

[11]  On Thursday 18 April 2024, the Respondent attended the Waikato GRC day meeting at Cambridge Raceway.

[12]  The Complainant in this matter is Senior Stipendiary Steward Philippa Kinsey, and she was the RIB Official (Chair of Stewards) in charge of the race meeting.

Offence Details

[13]  At around 10.35am after arriving on course, which is approximately 10 minutes before the closing of kennelling, there was a conversation between Trainer Mr Roper and Ms Kinsey in the carpark concerning the eligibility of one of his Greyhounds in a qualifying field regarding its current vaccination status.

[14]  The Greyhound GIVE IT JANDAL was showing as having the vaccination due on 28 March 2024. There is a 21-day grace period where Greyhounds can compete after the vaccination is due. In usual applications of calculating dates for the purpose of GRNZ Rules, the first day is included as day 1. Stipendiary Stewards calculated the due date of 28 March to 18 April in the system to show this to be 22 days after the vaccination was due.

[15]  After having a conversation with Mr Roper indicating, based on the calculation, the Greyhound would not be eligible to compete due to the vaccination status being overdue, the Respondent came to the kennel block area and proceeded to address Stewards in an unacceptable manner.

[16]  The Respondent yelled at Ms Kinsey, repeatedly (using the following abbreviated language) saying, “do your f…n job,” “this is f…n bullshit” and “You and whoever allowed the dog GIVE IT JANDAL to be nominated for his run are just getting paid to do f…ing nothing.”  Her conduct was loud, abusive and insulting.

[17]  Stipendiary Steward Mr Westerlund and other Licenced Persons/Handlers were also present at this time and heard and witnessed the Respondent yelling and verbally abusing Ms Kinsey.

[18]  The Respondent was acting in an unacceptable manner by yelling and waving her arms at Stewards for approximately three minutes. The Respondent believed it was the Stewards’ job to inform Trainers of expired vaccinations.

[19]  The Respondent then left the course.

[20]  An investigation into the Respondent’s conduct was opened and adjourned on the day as recorded in the Waikato GRC Stewards Report on 18 April 2024.

[21]  The Respondent has subsequently admitted the charge and she has not previously appeared.

Penalty Submissions – Applicant (RIB)

[22]  The Applicant, Chief Stipendiary Steward Mr Wallis filed written Penalty Submissions on behalf of the RIB.  These are summarised  as follows:

Sentencing Principles

[23]  The RIB referred to the four key principles of sentencing, namely:

1.  Penalties are designed to punish the offender for their wrongdoing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence, but the offender must be met with a punishment.
2.  In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.
3.  A penalty should also reflect the disapproval of the Adjudicative Committee for the type of behaviour in question.
4.  The need to rehabilitate the offender should be considered.

Public Interest

[24]  The RIB submits that the Greyhound Industry is under constant scrutiny by those who perceive there to be no place for the sport in society, to the point that the general public are now being influenced through the negative media interest. To have Licence Holders direct abusive and foul language towards a Senior Racing Official at a race meeting, will only further damage the integrity of the Code. If these types of breaches are not upheld in the industry and when necessary, with condign sanctions, the industry cannot maintain a ‘social licence’ to continue to operate.

RIB’s Position as to Penalty

[25]  The RIB submits that when determining its penalty, the Adjudicative Committee has regard to the purpose of the proceedings which include:

1.  to ensure the Rules are complied with;
2.  to uphold and maintain the high standards expected of Officials and Licence Holders alike; and
3.  to protect the other participants in Racing.

Comparable Cases

[26]  The RIB referred to the most recent cases said to be similar and comparable, namely:

RIB v Casey (2024)

[27]  Casey admitted a charge under 156(g) that he wilfully abused and threatened a GRNZ employee by swearing at him and threatening to punch him in the head. Mr Casey was fined the sum of $2,500.  A suspension of 2 months was also imposed.  This was suspended on the basis that if a further breach of this Rule occurs within 12 months, this suspension will be enforced.

[28]  In this Decision, the Adjudicative Committee was of the opinion this type of behaviour has surfaced far too frequently and that employees, officials and the like, should be able to perform their tasks without abuse and/or the threat of violence.

RIU v Steele (2020)

[29]  Steele admitted a charge under the ‘old’ Rule 62.1(g) in that he threatened Steward Scott Wallis. Having been requested to attend the Stewards Room by Mr Wallis, Steele repeatedly swore that he wouldn’t attend. As the pair walked together, Steele’s Greyhound twice jumped up on Mr Wallis, who pushed the dog away. Steele reacted by extending his arm toward Mr Wallis in a threatening manner telling him not to touch his “f……g greyhound” and that if he did so again, he would knock his f……g block off and that would be the last thing he ever did.

[30]  In determining penalty, Steele expressed a preference for a suspension rather than a fine. His expression of remorse and willingness to rehabilitate were offset by his two prior recent behavioural charges. The resulting penalty was a six-month suspension – with the final two months to be remitted upon proof of completion of formalised counselling.

“The Committee believes that a term of suspension is a necessary penalty having regard to Mr Steele’s record and the severity of the offending involving, as it did, a threat of violence to Mr Wallis, Stipendiary Steward.”

RIU v Goode (2017)

[31]  Goode also involved a charge under the ‘old’ Rule 88.1(g) in that he abused and threatened a Steward. In this case, a heated dispute between Goode and a Steward during a race meeting, resulting in Goode raising his fists toward the Steward’s face stating, “you are lucky I don’t whack you now,” in addition to using abusive and foul language. This was Goode’s first offence, which he defended, and he received a four-month suspension of his Greyhound Trainer’s Licence. The matter was part of a greater incident which involved additional charges.

Aggravating Factors

The RIB referred to the following aggravating factors :

[32]  GRNZ records detail that the Respondent first held a Licence in 2014 and therefore she must know the importance of conducting herself in a professional manner to maintain the integrity of Racing. There is expectation that all Licence Holders behave properly, as a condition of their Licence being granted.

[33]  Ms Kinsey was acting within her compass as the Chairperson of Stewards for the meeting  and should not have to be subjected to verbal abuse and foul language in front of her peers and other Licenced Persons while carrying out her duties. This type of behaviour is completely unacceptable and goes against the expected standard of professionalism. No one should have to endure a tirade of abuse or foul language in the workplace.

Mitigating Factors

The RIB referred to the following mitigating factors:

[34]  The Respondent has no previous behaviour related or any other NRI charges in her 10 years in the industry.

[35]  She has admitted the charge at the earliest opportunity and has been fully cooperative throughout the process.

Conclusion

[36]  Given the circumstances of the case and the aggravating and mitigating factors, the critical need to hold individuals accountable for their actions, and that penalties given for this type of behaviour must be to a point that acts as a deterrent for others and the most recent penalty imposed for a similar offence, the RIB submitted that the following penalty be imposed:

1.  A 2 month suspension of Ms Castro’s Handlers Licence, (which is to be suspended for 12 months) and;
2.  A fine of $1,500.

Costs

[37]  The RIB does not seek costs.

Penalty Submissions – Respondent

[38]  The Respondent provided the Adjudicative Committee with written Penalty Submissions and at the hearing, she also orally highlighted other issues in support of her submissions.  These are summarised as follows:

[39]  The Respondent advised that she is a Licensed Owner/Handler and representative member of Roper Kennels. A position she has held for over 10 years.

[40]  She submitted that she accepts her wrongdoing (as per the charge).  She stated that while she admits her language was unacceptable, she felt that “the situation has been addressed in a trivial manner instead of adhering to more significant guidelines”, which she felt were being disregarded.

[41]  The Respondent made reference to the application of the Rules relating to nominations, specifically Rule 75D, which she believed contributed to the incident which led her to use the language complained of.  She said it was her concerns about this which caused her to “just snap”, because she felt that her concerns were not being heard and that in her view, “patching the issue would not resolve the root cause of the problem.”

[42]  With regards to the penalty sought by the Applicant, she said that a $1,500 fine was excessive, as there were no threats or violence associated with her language.  She further queried why there was a further penalty of a 2 month suspension (wholly suspended).  She said that given she is involved in many of the Roper Kennels’ day to day administrative activities, and as an Owner, a 2 month suspension would have significant consequences.  It was explained to her that it was the RIB’s intention that any suspension was to be wholly suspending, meaning so long as there was no further offending, the suspension would not be enforced.

[43]  In concluding her submissions, the Respondent asked the Adjudicative Committee to take into account the following:

1.  That she has a good record and that she has admitted the breach.
2.  That she does not normally use the type of language referred to in the charge.
3.  That she has never been in this situation before; is usually a respectful person and on this occasion she  simply “snapped”.
4.  That she was sorry for directing the obscene language at Ms Kinsey.
5.  Note: Following the hearing, the Respondent communicated with Ms Kinsey via email – and apologised for her inappropriate language and behaviour.

Decision and Reasons

[44]  The Respondent has admitted one charge of Misconduct as set out in Part 9 (Division 1, General Offences) of the GRNZ Rules, in that at the Waikato GRC Meeting on 18 April 2024, she wilfully abused Senior Stipendiary Steward, Ms P Kinsey, by way of directing foul and obscene language at her.  This occurred whilst Ms Kinsey was operating in the execution of her duty as the Chairperson of Stewards at that meeting.

[45]  Details of the offence, including the background information that led to the Respondent’s offending, are set out in paragraphs 10 to 21. In addition, both the Applicant and Respondent, have provided detailed submissions.

Reasons for Penalty

[46]  Having, (a) evaluated the evidence, (b) considered the submissions and precedent penalties, (c) determined the Respondent’s level of culpability and (d) after weighing up the sentencing options that are available under the Rules, the Adjudicative Committee concludes that a combined fine and a suspension of the Respondent’s Handler’s License (wholly suspended) is the most appropriate penalty in the circumstances of this case.

The Case for the Informant

[47]  Mr Wallis confirmed that the case for the RIB is clearly set out in the Summary of Facts, which has been acknowledged and agreed to by the Respondent.  He also pointed to the RIB’s Penalty Submissions. In particular, he referred to what the RIB considered to be precedent cases and he also highlighted the fact that Officials need to be able to go about their day to day duties without risk or fear of abuse.  In that regard, he reinforced the need for adverse behaviour directed at Officials to be denounced.

[48]  Mr Wallis advised that any concerns that could not be revolved between Stewards and License Holders, should be raised with him for discussion and/or resolution in his capacity as Chief Greyhound Steward – rather than resorting to abuse.

[49]  He also advised that the issue that gave rise to the Respondent’s concerns i.e. the vaccination timeline, has now been resolved.   He said that this has been explained to Mr Roper, whose dog(s) were affected by the issue and Mr Wallis is confident an incident of this nature should now not arise in the future.

The Case for the Respondent

[50]  The Respondent explained her behaviour was because she was aggrieved and operating under the erroneous belief that Stewards had wrongly questioned Mr Roper concerning the eligibility of one of his Greyhounds to participate in a qualifying field, due to its current vaccination status. Although the Respondent has been connected to the Roper Kennels for several years and may well have felt upset about the Greyhound’s vaccination eligibility, she should not have intervened as she did. It makes little difference whether or not she believed she had a legitimate complaint – she should not have intervened in such an aggressive manner.  The language she directed at Ms Kinsey was unnecessary, provocative, and unbecoming of a License Holder.

[51]  Much of the Respondent’s case was about why she intervened and reacted as she did.  In her written and during her oral submissions, she wished to raise what appeared to be some longstanding concerns she had with Stewards’ decision-making.

[52]  In response, and after considering relevance of these concerns, the Adjudicative Committee advised that it was not its intention to relitigate any long-lasting issues she had with Stewards and that the proper course and avenue for exploring any such objections, should properly be dealt with either by way of her seeking (a) a Review (if permitted by the Rules); (b) a Ruling (if it’s a matter requiring an Adjudicative decision); or (c) by engaging i.e. requesting a ‘round table’ discussion.  In any event, whatever concerns Licence Holders may have, abusing a Steward or any other Official acting in the execution of their duty cannot be condoned, justified or excused.  This point was well made in the Written Decision RIB v Pender (Feb 2022), where it was said by the Adjudicative Committee that:

The Adjudicative Committee’s function is not about adjudicating or ruling upon, respective arguments as to rights and wrongs of licence holders or others.  If differences should exist, they may be resolved in other ways.  But if standards of behaviour are breached, the entire profession comes into disrepute, its public standing is in jeopardy, and its standing as a respected and honourable profession is diminished.  It is not an answer to misconduct in breach of the Rule to say that some other person was partially to blame, for the misconduct of the offender. 

[53]  To her credit, in her written and oral submissions, the Respondent freely admitted her wrongdoing and throughout the hearing, she demonstrated genuine remorse.  Additionally, since the hearing, she has offered to a written apology to Ms Kinsey.

Precedent Cases

[54]  The Adjudicative Committee has noted and considered the precedent cases that were submitted by the RIB – notably RIB v Casey, RIB v Steele and RIB v Goode.  Whilst those cases included the use of foul and obscene language, which was directed at Officials including Stewards, they also included threats of violence. This case differs in that the Respondent did not threaten violence and she has a clear record.

[55]  There are other cases of Misconduct involving obscene language directed at Officials (including Stewards) across the other two Racing Codes that provide useful guidance in calibrating penalty and for ensuring parity – albeit each of the Racing Codes have differing penalty starting points.  For example, in Thoroughbred Racing, there is no starting point and penalties are imposed on a fact dependent basis (refer Thoroughbred Penalty Guide as of February 24).  In Harness Racing, the starting point is a $600 fine for a first offence and a starting point of a $1,000 fine for a second offence (refer Harness Penalty Guide as of Feb 23).

[56]  There is no equivalent Penalty Guide for NZGR breaches – on that basis, precedent cases where offending and culpability can be closely matched, provide the most useful guide for benchmarking purposes. As can be seen, historically there has been a wide range of penalties imposed for Misconduct breaches, for example:

RIU v Scott (2021) – Abusive language directed towards a Steward.  A fine of $850 plus costs of $353.75.

RIU v Grant  (2021) – Offensive language to a Swabbing Official – fine $1,250.

RIU v Waretini (2018) – Offensive language to a Steward – fine $750.

RIU v Kettlewell (2018) – Abusive language to a Steward – fine $250.

RIU v Weir (2017) – Improper and offensive language to a Steward – fine $500.

RIU v Hodgson (2015) – Improper language and behaviour to a Steward – fine $400.

RIU v Lane (2015) – Insulting language directed towards Stewards – fine $300.

Thoroughbred Misconduct Cases

RIB  v Wynyard (2021) – directed obscene language at a Steward – fine $1,200.

RIB v Benner (2023) – obscene language directed a Vet and RIB Investigator – fine $1,500.

RIB v Pender (2022) – directed obscene language at a track official –  fine $500.

Mitigating Factors

[57]  The Adjudicative Committee deems the following mitigating factors to be relevant.

1. The Respondent admitted the breach and was said to have been cooperative.
2. The Respondent, having reflected on her behaviour, is genuinely remorseful.
3. The Respondent has belatedly written to Ms Kinsey and apologised.
4. The Respondent has been involved in Greyhound Racing for more than 10 years as an Owner and Handler and this is her first offence of this nature.

Aggravating Factors

[58]  The Adjudicative Committee deems the following aggravating factors to be relevant.  These also take into account mitigating factors highlighted by the RIB.

1. Although it is accepted that the Respondent’s intervention was spontaneous and she just “snapped,” the Adjudicative Committee agrees with the RIB’s submission that Ms Kinsey was acting in the execution of her duty and should never have to be subjected to verbal abuse and foul language in the presence of peers and other Licenced Persons.
2. This type of behaviour is completely unacceptable and Licensed Persons must understand that this is Stewards’ and other Officials’ workplace, and therefore they are entitled to protection not only under the Rules, but also protections afforded under Workplace Legislation.
3. Incidents such as this, undermine and seriously damage the public’s perception of Greyhound Racing.

Conclusion

[59]  The RIB has submitted that an appropriate penalty in this case would include a 2 month suspension, wholly suspended for a period of 12 months and in addition, a $1,500 fine, on the proviso that if a second relevant offence against GRNZ Rule 141(1) was to occur during the 12 month period, the 2 month suspension would be activated.

[60]  Having carefully compared the circumstances of this case with the precedent cases and the penalties imposed in those cases, the Adjudicative Committee places the Respondent’s offending in the mid-range.  It is clearly not low level, nor is it in the high range where in comparable cases, abuse and language use has been accompanied by actual or threats of violence.  As has been pointed out in this case, there were no threats or violence.

[61]  Therefore, a $1,500 fine has been adopted as the starting point, which the Adjudicative Committee has assessed as a fair and reasonable reflection of the Respondent’s level of culpability and is inclusive of the aggravating factors.

[62]  In recognition of the mitigating factors, a $300 (20%) reduction is applied to the starting point, resulting in an end point fine of $1,200.

[63]  With regards to the Applicant’s submission that a 2 month suspension (suspended for 12 months) be imposed, the Adjudicative Committee is conscious that, although the Rules permit a combination of penalties, it was mindful to ensure the Respondent was not at risk of, in effect, being penalised twice for the same offence i.e. a doubling up of a fine and a suspension.  In that regard, careful consideration was given to ensure that in addition to a fine, any other additional penalty, such as a suspension (albeit suspended) must be proportionate, comparable with precedent cases and serve a legitimate purpose.

[64]  Therefore, it is on that basis, the Adjudicative Committee agrees that a suspension (suspended) would appropriately denounce the Respondent’s offending and serve as a deterrent to her and others; but it does not agree that the suspension necessarily should be ‘suspended’ for a full 12 months.  The Respondent does not have any previous history of abuse.  What is required in this case, is a short ‘cooling off’ period, which will hold her to account, denounce her offending and operate as a deterrent.  Accordingly, a 2 month suspension is imposed, which is to be wholly suspended for 4 months.

Penalty

[65]  In conclusion, combined with the need to ensure that the penalty reflects natural justice, fairness and proportionality principles balanced against the need for accountability, the Adjudicative Committee has determined a $1,200 fine and a 2 month suspension (wholly suspended for 4 months as per r174(3)), is an appropriate penalty.

[66]  The 2 months commences from the date of this Decision (4 June 2024) and concludes on 4 August 2024, and the ‘suspended’ component expires on 4 October 2024.

Costs

[67]  The RIB has not sought costs and although the Adjudicative Committee has incurred some costs, it has been determined that there be no costs order as the matter was dealt with on a Raceday.